NLRB Requires Employers to Look in a Chrystal Ball when Negotiating Management Rights Clauses

A company announced its intent to make changes to existing policies, specifically, its work rules, absenteeism policy, and progressive discipline policy, which were maintained outside of the collective bargaining agreement. Upon learning of this, the union asked to meet and requested information regarding the proposed changes. The company agreed to the meeting, but made clear its position that there was no obligation to bargain over the proposed changes since the management-rights language reserved the right to adopt and enforce rules and regulations and policies and procedures, and to establish standards of performance for employees. The company also denied that it had an obligation to provide the requested information given there was no duty to bargain.

Nonetheless, the parties met and discussed the proposed changes. The employer made some revisions requested by the union and then implemented the modified policies. The NLRB ruled that the employer did not have the right to make these changes outside of bargaining because it did not specifically reserve the right to make such changes in the management rights clause of the collective bargaining agreement.

In his dissent, Member Miscimarra said the “management rights language demonstrates that the parties had already bargained and agreed that the employer had the right to make those changes unilaterally.” To hold otherwise would require employers to determine every potential management rights-related change they may want to make during the future life of the collective bargaining agreement and negotiate those changes into the agreement or risk losing the ability to make the changes without bargaining over them.

This case indicates that the Board will now require a degree of specificity not previously required in order to find a waiver in the language of a management-rights clause. Employers should consider negotiating management-rights provisions with as much specificity as possible as to the rights being retained or engage in bargaining with the union before making any changes in terms and conditions of employment.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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